Government Relations Update – February 22, 2011

State Issues

Legislation

• S.B. 2: Fair Share Act. On January 18, 2011, Senator Corman (R-Centre) introduced legislation to reform the doctrine of joint and several liability in Pennsylvania. The legislation provides that each responsible defendant would be liable only for its proportionate share of the total verdict amount in the ratio of that defendant’s liability. However, the doctrine of joint and several liability would still apply if a defendant is held responsible for 60% or more of the verdict, as well as situations involving intentional torts, certain environmental cleanups and specific liquor law violations. The bill is nearly identical to the one Governor Rendell vetoed in 2006. Opponents to the legislation assert that changing the existing law would deny an injured plaintiff full and just compensation for injuries. Senator Mensch (R-Bucks, Lehigh, Montgomery , Northampton) serves as a co-sponsor of the bill, which is currently in the Senate Judiciary Committee. HAP supports the legislation, together with several pro-business organizations such as the Pennsylvania Business Council.
  
  On January 27, 2011, Representative Schroder (R-Chester) introduced similar legislation in the House. Representatives Clymer (R-Bucks), Harhart (R-Lehigh, Northampton), Heffley (R-Carbon), Knowles (R-Berks, Schuylkill), Reichley (R-Berks, Lehigh), Simmons (R-Lehigh, Northampton), and Toepel (R-Montgomery) serve as co-sponsors of the House bill, which is currently in the House Judiciary Committee.
  
• H.B. 495: Apology/Benevolent Gesture Act. On February 4, 2011, Representative Gillespie (R-York) introduced legislation declaring an apology by a healthcare provider or healthcare employee inadmissible in any subsequent medical malpractice action. Thirty five states have passed similar legislation with the goal of encouraging communications between patients and providers and reducing the number of medical malpractice cases. Representatives Clymer (R-Montgomery), Day (R-Berks, Lehigh) and Reichley (R-Berks, Lehigh) serve as co-sponsors. On February 15, 2011, the House Judiciary Committee approved the bill by a 23 to 2 vote. Representatives Brennan (D-Lehigh, Northampton ) and Toepel (R-Montgomery) serve on the Judiciary Committee and voted in favor of the bill. HAP supports the bill, which now proceeds to the House for consideration.

Advocacy

• Medical Assistance Modernization Act: As reported previously, the Medical Assistance Modernization Act was passed as part of the state budget on July 9, 2010. The Act contemplates a tax on hospital net inpatient revenues as a method to secure additional federal matching funds, which are then distributed to hospitals through increased medical assistance payments and restoration of payments eliminated in the state budget. The Department of Public Welfare (DPW) recently received final approval from the Centers for Medicare & Medicaid Services (CMS) on the technical language for DPW contracts with managed care organizations. The approval by CMS allows DPW to implement the Act, and DPW anticipates making payments within the next few weeks. These payments will be retroactive to July 1, 2010.

Miscellaneous

• Pennsylvania Primary: The Pennsylvania primary election will take place on May 17, 2011. Nominating petitions are currently being circulated and must be filed by March 8, 2011. Representative Reichley (R-Berks, Lehigh) intends to seek a judge seat on the Lehigh County Court of Common Pleas. Before being elected to the legislature in 2002, Representative Reichley was a prosecutor and Assistant District Attorney in the Lehigh County District Attorney’s Office. Lehigh County Commissioner Dan McCarthy, County Chief Deputy District Attorney Renee Smith and local lawyers Melissa Pavlack and John Ashley are planning to compete with Representative Reichley for a seat on the bench.

Federal Issues

Legislation

• H.R.2: Repealing the Job-Killing Health Care Law Act. On January 19, 2011, the Republican controlled House of Representatives fulfilled its promise to propose legislation repealing the Patient Protection and Affordable Care Act (PPACA). Every Republican voted in favor of the bill, three members of the Democratic Party joined them, and the bill passed by a 245 to 189 vote. Following the vote, Senate Majority Leader Harry Reid (D-NV) announced that he would not allow the bill to proceed for a vote in the Senate. President Obama promised to veto the bill if presented to him.
  
  On February 2, 2011, Senate Minority Leader Mitch McConnell (R-KY) introduced the repeal bill as an amendment to the Federal Aviation Administration’s reauthorization bill. However, the Senate failed to gather the 60 votes required to proceed with a full vote on the amendment. Following the failed attempt, Senator Reid declared that the PPACA repeal effort was dead, but Republicans vowed to continue their attempts. As expected, Senator Toomey (R-PA) voted in favor of repeal, and Senator Casey (D-PA) voted against the measure.
  
• H.R. 5: The Help Efficient, Accessible, Low-Cost Timely Healthcare Act (HEALTH). On January 24, 2011, Congressman Gingrey (R-11-GA) reintroduced legislation to limit non-economic damages to $250,000 in medical liability suits. Representative Gingrey asserts that the bill represents meaningful medical liability reforms and will lower the cost of healthcare. Congressmen Dent (R-15-PA) and Fitzpatrick (R-8-PA) serve as co-sponsors of the bill. The bill is currently in the House Judiciary Committee and the Energy and Commerce Committee and is supported by HAP and Premier. During recent years, similar measures have passed in the House but failed in the Senate.

Advocacy

• Federal Fiscal Year 2012 Budget: On February 14, 2011, President Obama released his proposed budget for Federal Fiscal Year 2012, which would reduce the national deficit by $1.1 trillion over the next decade. The President achieves this objective largely through reductions in spending and cuts to Medicare and Medicaid. Several new initiatives are included in the budget proposal, including an extension until 2013 of the current Medicare physician fee schedule, thereby delaying the drastic cuts scheduled in January 2012. The President also proposes expediting approval of generic drugs, tracking high cost Medicaid prescription prescribers, banning from Medicare and Medicaid brand manufacturers who delay availability of generic drugs, requiring prepayment review of all power wheelchairs for Medicare and Medicaid patients and limiting Medicaid reimbursement for durable medical equipment. Historically, the President’s budget proposals are rarely enacted, although the proposal will start the dialogue regarding various budget issues.
• Constitutional Challenges to PPACA: On January 31, 2011, Judge Roger Vinson of the United States District Court for the Northern District of Florida ruled that the individual mandate provision of PPACA violated the Constitution by regulating economic inactivity. Judge Vinson also ruled that the mandate is not severable from PPACA and thus found the entire statute unconstitutional. Judge Vinson allowed the law to stand while it is being appealed by the Obama administration. Judge Vinson is the second federal judge to rule the individual mandate provision unconstitutional, but he is the first to rule the entire statute unconstitutional. Pennsylvania Governor Tom Corbett (R) indicated that Pennsylvania will continue to implement PPACA provisions for the time being.
• Congressman Mike Fitzpatrick: On February 1, 2011, St. Luke’s Quakertown Hospital and HAP hosted a luncheon meeting with Congressman Fitzpatrick (R-8) to provide information concerning issues impacting health care delivery. Representatives from Mercy Health System, Aria Health System, Grand View Hospital, Pottstown Memorial Medical Center, Penn Medicine and Doylestown Hospital also participated in the meeting.